TaxTMI 
TaxTMI 
2021 (2) TMI 1147
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....lant is as follows:- (i) The Appellant Company and the Respondent Company are both limited liability companies incorporated and registered under the Companies Act, 1956. The Appellant Company is a marine electronics support, service provider and systems integrator, which specializes in designing and integrating communications and navigation systems. The Respondent Company is a provider of services for operation, management and communication system for aircrafts etc. (ii) The Respondent approached the Appellant in April, 2010 to provide Airtime/Communication service to the Respondent. These services began to be provided by the Appellant to the Respondent from May, 2010 onwards and invoices were raised periodically by the Appellant to the Respondent for the service rendered, which were cleared from time to time. The Respondent had leased a Falcon 2000 LX Aircraft from M/s, Bajaj Hindustan Sugar Limited on which the Appellant had activated satcom facility. (iii) Some payments remained to be made to the Appellant by the Respondent. The Appellant sent e-mails in April/May, 2012 to the Respondent to clear outstanding payment of Rs. 37,02,761/- (Rupees Thirty Se....
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....on 06.01.2020 which was not admitted by the impugned order passed on 20.5.2020. 3. The Respondent filed reply and both parties filed their written submissions. Both parties were also accorded ample opportunity to present oral arguments in support of their respective cases. 4. In the Appeal preferred by the Appellant, the main ground taken is that the winding up petition before the Hon'ble High Court of Allahabad was dismissed on the ground of misjoinder of party and, therefore, the period during which the winding-up petition was being prosecuted in good faith before the Hon'ble High Court of Allahabad should be excluded in accordance with Section 14 of the Limitation Act, 1963 in computation of limitation for the Section 9 application under IBC. 5. In support of his case, the Learned Counsel for the appellant has referred to the judgment of the Apex Court in the case of Jignesh Shah & Anr v. Union of India & Anr; (2019) 10 SCC 750 wherein the Hon'ble Supreme Court has held that "...in matters pertaining to winding up petitions, Section 433 (e) read with Section 434 of the Companies Act would show that the trigger point for the purpose of limitation for filing of a....
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....greement viz-à-viz for taking service or has admitted to have taken service from the petitioner, therefore, the respondent-company is not liable to pay the amount involved. In view thereof, it is not proved that the respondent-company is liable to pay the said amount. The question of fact is involved in this petition as to whether the respondent-company is liable to pay the amount or not, which can only be proved by a detailed evidence. I find it not a proper case to be entertained. The present company petition filed under sections 433(e)(f), 434 & 439 of the Companies Act, 1956, lacks merits and the same is dismissed." 8. The portions of Section 14 of the Limitation Act, 1963 which are relevant to this appeal are reproduced below:- 14. Exclusion of time or proceeding bona fide in Court without jurisdiction - (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding, relates to the same matter in issue and is prosecuted in good faith in a Cour....
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....Admittedly, the Appellant was not party in the winding up Petition. Thus, this case may be of non-joinder of parties and not the mis-joinder of parties. The Petition was dismissed by the Hon'ble High Court on the ground that the question of fact involved in the petition as to whether the Respondent Company is liable to pay the amount or not, which can only be proved by detailed evidence. Thus, the Appellant has not fulfilled any of the conditions enumerated in Sub-Section 2 of Section 14 of the Limitation Act. 11. In such a situation, we are unable to accept the contention of the Appellant that the winding-up petition No.6 of 2015 was dismissed on the ground of mis-joinder of parties, and we are not persuaded to allow the Appellant the benefit of Section 14 of the Limitation Act, 1963. 12. Now we look at the date of filing application under Section 9 of the IBC. As mentioned in the impugned order, the winding up petition was filed in the High Court of Allahabad on 10.7.2015. Since, it was taken up for hearing, we accept that the winding up petition was filed within three years from the date of default, which appears to be 12.7.2012 (which is the date of clearing of the last p....